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HH 42-15
CA 247/14
CRB 133/14
BRIAN MURAMBIWA
versus
THE STATE
HIGH COURT OF ZIMBABWE
HUNGWE & BERE JJ
HARARE, 13 January 2015
Criminal Appeal
R Jambo, for the appellant
T Mapfuwa, for the respondent
HUNGWE J: The appellant is a haulage truck driver. Besides holding the normal
driver’s licence, he has a defensive driving certificate. He was convicted of culpable
homicide arising from the death of seven commuter omnibus passengers in a road traffic
accident which occurred at the intersection of Dieppe Road and Joshua Nkomo Road,
Braeside, Harare on 25 February 2013 around midday. He was sentenced to 24 months
imprisonment. His driver’s licence was cancelled and prohibited from driving heavy vehicles
for life in terms s 64 of the Road Traffic Act, [Cap 13:11]. He appeals to this court against
both his conviction and sentence.
The main ground of appeal against conviction is that the court erred by totally
disregarding the principles governing sudden emergency situation when the appellant was
forced into a sudden emergency situations by another driver and as such he could not be held
negligent in his driving conduct leading to the accident. Other grounds of appeal amount to
an attack on the factual findings by the trial court.
The essence of this appeal is whether, in disbelieving the appellant’s version of
events, the trial court erred.
The learned trial magistrate, in a well-reasoned judgment, assessed the credibility of
both the state and defence witnesses in a methodical manner and found that there is no
evidence to support the appellant’s claim that a run-away commuter omnibus had suddenly
crossed his path of travel thereby creating a sudden emergency. She therefore concluded that
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his claim that there was such an incident in the first place which led to a chain of events
leading to the fatal crash was false.
It is trite in our law that an appellate court will not interfere with the findings of fact
made by a trial court and which are based on the credibility of witnesses. The reason for this
approach is that the trial court is better placed to assess the witnesses from its observation, it
enjoying the advantage of seeing and hearing them first hand. In S v Isolano 1985 (1) ZLR 62
(SC) DUMBUTSHENA CJ expressed himself thus:
“There are many authorities of this court and persuasive authorities from other
jurisdictions on the proper approach of an appellate court to the consideration of a
decision based on fact. I find the remarks of LORD MACMILLAN in Watt (or
Thomas) v Thomas [1947] 1 All ER 582 (HL) at 590 B-D very appropriate in this
case. He said:
The appellate court had before it only the printed record of the evidence. Were
that the whole evidence it might be said that the appellate judges were entitled
and qualified to reach their own conclusion upon the case, but it is only part of
the evidence. What is lacking is evidence of the demeanour of the witnesses,
their candour or their partisanship, and all the incidental elements so difficult
to describe which make up the atmosphere of an actual trial. This assistance
the trial judge possesses in reaching his conclusion, but it is not available to
the appellate court. So far as the case stands on paper, it not infrequently
happens that a decision either way may seem equally open. When this is so,
and it may be said of the present case, then the decision of the trial judge, who
has enjoyed advantages not available to the appellate court, becomes of
paramount importance and ought not to be disturbed. This is not an abrogation
of the powers of a court of appeal on questions of fact. The judgment of the
trial judge on the facts may be demonstrated on the printed evidence to be
affected by material inconsistencies and inaccuracies, or he may be shown to
have failed to appreciate the weight or bearing of circumstances admitted or
proved, or otherwise to have gone completely wrong.”
See also Hughes v Graniteside Holdings (Pvt) Ltd S-13-84 (unreported) at 10-14; S v
Mlambo 1994 (2) ZLR 410 (S).
The trial court interacts with witnesses both visually and orally during trial. It gets the
real feel of the events from the description of the witnesses and therefore is inexorably better
placed to say which witness’s evidence is to be preferred over the other for the reasons that
the court will give. Even where no such reasons are not included in its reasons for judgment,
the fact that the trial court commands the first impression on credibility cannot be lightly
overturned. Therefore when an appeal court reads the record of proceedings, it must give due
weight to the impressions made by the trial court in respect of credibility.
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In the present matter, the driver witnesses who would have, in all probability,
witnessed the alleged run-away commuter omnibus all testified that they did not see any
such vehicle as would have caused the appellant to straddle across into the oncoming motor
vehicles’ lane. The appellant’s version of events was contrasted with the evidence of eye
witnesses before the court settled on rejecting it. There was a police detail on traffic duty as
well as a newspaper vendor. These two would not have an interest in the outcome of an
investigation or the trial as they are independent of the events which led to the allegations
against the appellant. Both did not confirm the appellant’s claim of the run-away vehicle. The
Police Investigating Officer produced a diagram drawn upon indications made by the
appellant. In it the appellant indicated to the investigator the point where he claimed he hit
into this alleged run-away omnibus. Coincidentally, it is the same point where the two
omnibuses involved in the accident collided with the appellant’s heavy vehicle. The facts
indicate that the two mini-buses were travelling from the appellant’s opposite side. They were
not being pursued by the police as appellant claimed as the reason for the erratic driving
conduct of one of them. Given the appellant’s own version, which is highly improbable, the
court a quo cannot be criticised for rejecting it.
The fact of the matter is that the appellant drove negligently in that he suddenly
changed lanes, for no apparent reason, when it was not safe to do so since there was oncoming traffic. He failed to stop or act reasonably when an accident was imminent resulting
in him colliding into no less than three motor vehicles. His failure to stop when he straddled
into the opposite lane constitutes an act of negligence, more so, if regard is had to the fact that
he was approaching a robot-controlled intersection. He was expected to stop, should the
driving conditions require him to. His failure to have done so may also indicate that he was
driving at a speed excessive in the circumstances. The result of his negligence is that he
collided into three motor vehicles which were lawfully using the road and on their correct
side of the road. Two of these were commuter omnibuses. From one of them seven people
unnecessarily lost their lives. There is on the record sufficient proof of negligence to justify
his conviction. This court will not disturb that conviction.
As for sentence, we find that the learned trial magistrate properly assessed the degree
of negligence in the appellant’s driving conduct and concluded that he was grossly negligent.
Appellant approached an intersection driving a heavy vehicle at an excessive speed. He failed
to keep his vehicle under proper control; he must have failed to keep a proper look out on the
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road and therefore failed to stop or act reasonably when an accident was imminent. In these
circumstances we are of the view that the sentence imposed in the court a quo was eminently
proper for the degree of negligence displayed by the appellant. See S v Mapeka 2001(2) ZLR
90 (H).
We therefore dismiss the appeal in its entirety.
__________________________
BERE J agrees.
Jambo Legal Practice, appellant’s legal practitioners
National Prosecuting Authority, respondent’s legal practitioners